In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1176

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEAN OSBORNE,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:07CR00093-001—David F. Hamilton, Chief Judge.

ARGUED OCTOBER 24, 2008—DECIDED JANUARY 5, 2009

Before EASTERBROOK, Chief Judge, and POSNER and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Sean Osborne pleaded guilty

to possessing and distributing child pornography, in

violation of 18 U.S.C. §2252(a). The minimum penalty for

that crime is 5 years, and the maximum is 20 years, but

if the defendant has a prior conviction “under the laws

of any State relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or

ward”, the minimum penalty rises to 15 years and the
2 No. 08-1176

maximum to 40. 18 U.S.C. §2252(b)(1). Osborne’s record

includes a conviction for violating Ind. Code §35-42-4-9(b),

which makes it a crime for a person age 18 or older to

“perform[] or submit[] to any fondling or touching, of

either the child [any person age 14 or 15] or the older

person, with intent to arouse or to satisfy the sexual

desires of either the child or the older person”. The district court concluded that every conviction under §35-42-4-

9(b) arises from “abusive sexual conduct involving a

minor or ward” and sentenced Osborne to 15 years’

imprisonment.

Section 35-42-4-9(b) doubtless defines a crime that

entails “sexual conduct involving a minor or ward”. But

is this sexual conduct “abusive?” Section 2252(b)(1) does

not define that word, nor has any court of appeals addressed what makes sexual conduct involving a minor

“abusive.” The prosecutor contends that §2252(b)(1)

must be read “broadly” and that any offense arising from

sexual conduct with minors must be seen as “abusive.”

That approach, however, would read the word “abusive”

out of §2252(b)(1); it would be as if the statute covered

any conviction for “sexual conduct involving a minor or

ward”. The phrase “abusive sexual conduct involving a

minor or ward” must be a subset of all “sexual conduct

involving a minor or ward”. Yet when we asked the

prosecutor at oral argument for an example of a crime

that arises from “sexual conduct involving a minor or

ward” that is not also “abusive,” she could not give one.

Force and fraud are two reasons why sexual contact

might be labeled “abusive,” but these are not required for
No. 08-1176 3

conviction under §35-42-4-9(b). (The use or threatened use

of deadly force, or administration of a drug, increases

the maximum penalty, see §35-42-4-9(b)(2), but is not

required for conviction.) Sexual contact with very young

girls might be thought abusive simply because of the

victim’s youth, or because pregnancy or the trauma of

intercourse creates an elevated risk of injury. See United

States v. Shannon, 110 F.3d 382 (7th Cir. 1997) (en banc). But

§35-42-4-9(b) applies only when the victim is at least 14;

Indiana has a separate statute covering sexual contact

with a person 13 or younger. Subsection 9(b) also

does not cover sexual intercourse with a child; that’s the

province of §35-42-4-9(a).

What gives some support to classifying §35-42-4-9(b) as

a crime of sexual “abuse” is the required age difference.

Many criminal laws, of which statutory rape is the bestknown example, rest on a belief that a combination of

youth and age difference prevents an effective consent

to sexual conduct. Sexual conduct without voluntary

consent is abusive.

But is all sexual conduct between people of different ages

in the “abusive” subcategory? The age difference under

§35-42-4-9(b) could be as small as two years (the older

person could have just turned 18, and the younger could

be one day short of 16), and the sexual contact could

include behavior common among students in high

school, such as kissing or petting “with intent to arouse . . .

the sexual desires” of either person. Indiana has held

that a touch on the buttocks or inner thigh comes within

“any fondling or touching” under this statute. See Altes v.
4 No. 08-1176

State, 822 N.E.2d 1116, 1121–22 (Ind. App. 2005) (buttocks);

Krebs v. State, 816 N.E.2d 469, 474 (Ind. App. 2004) (breast);

Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind. App. 1997)

(thigh). Exploratory touching between students in high

school is not a form of “abusive” sexual contact, as that

word is ordinarily understood.

Indiana has recognized this. Amendments to §35-42-4-9

in 2007 create a defense that covers most high school

students’ touching of the opposite sex. Subsection (e) now

provides:

It is a defense to a prosecution under this section if

all the following apply:

(1) The person is not more than four (4) years

older than the victim.

(2) The relationship between the person and

the victim was a dating relationship or an

ongoing personal relationship. The term

“ongoing personal relationship” does not

include a family relationship.

(3) The crime: (A) was not committed by a

person who is at least twenty-one (21) years of

age; (B) was not committed by using or threatening the use of deadly force; (C) was not

committed while armed with a deadly weapon;

(D) did not result in serious bodily injury; (E)

was not facilitated by furnishing the victim,

without the victim’s knowledge, with a drug

(as defined in IC 16-42-19-2(1)) or a controlled

substance (as defined in IC 35-48-1-9) or know-
No. 08-1176 5

ing that the victim was furnished with the drug

or controlled substance without the victim’s

knowledge; and (F) was not committed by

a person having a position of authority or substantial influence over the victim.

(4) The person has not committed another sex

offense (as defined in IC 11-8-8-5.2) (including

a delinquent act that would be a sex offense if

committed by an adult) against any other

person.

Subsection (e) identifies circumstances under which sexual

fondling or touching could not be called “abusive” in

ordinary usage. Yet Osborne was convicted in 2002, before

this defense was added to the statute.

Although neither §2252 nor any other section of the

Criminal Code defines the word “abusive,” some other

sections shed light on how Congress understood the

word. Section 2241 covers “aggravated sexual abuse”;

§2242 deals with “sexual abuse”; §2243 addresses “sexual

abuse of a minor or ward”. These are the same three terms

that §2252(b)(1) employs to denote state convictions that

support a recidivist enhancement, and §2252(b)(1) was

added in 1990 at the same time that §§ 2241–43 were

enacted, so these laws should be read together. Section

2243 is most helpful for our purpose, as it covers the

sexual abuse of a minor. Section 2243(a) makes it a crime

to “engage[] in a sexual act” with a person between the

ages of 12 and 15 who is at least 4 years younger than

the defendant. Section 2246(2) in turn defines “sexual act”

to include intercourse, fellatio, cunnilingus, and touching
6 No. 08-1176

the genitalia “not through the clothing”. “Sexual contact”

is defined in §2246(3) to include touching, directly or

through clothing, “the genitalia, anus, groin, breast, inner

thigh, or buttocks of any person with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person.”

Given the lack of a definition in §2252, we think it best to

say that, as a matter of federal law, sexual behavior is

“abusive” only if it is similar to one of the crimes denominated as a form of “abuse” elsewhere in Title 18. This is

the approach the Supreme Court took in Begay v. United

States, 128 S. Ct. 1581 (2008), to the definition of a

“violent felony” under 18 U.S.C. §924(e)(2)(B)(ii). Cf.

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)

(en banc) (“sexual abuse of a minor” in immigration law

means a state offense that would be a crime under §2243).

Similar is not necessarily identical; federal law does not

prohibit all kinds of abusive sexual contact, and statutes

such as §2243 contain elements (interstate commerce or

the special federal territorial jurisdiction) that are

unrelated to the “abusive” nature of the sexual behavior.

That’s why §2252 enhances the penalty following state

as well as federal convictions. It is easy to see why any

sexual contact by a child’s adult relatives might be

deemed abusive even though no federal statute covers

the subject. But a state statute that makes it a crime for

one teenager to engage in sexual contact with another,

without committing a sexual act or without a four-year

difference in age, is hard to classify as “abusive” given

the treatment that term receives in Chapter 109A of the

Criminal Code (18 U.S.C. §§ 2241–48, and titled “Sexual

Abuse”).
No. 08-1176 7

The crime defined by Ind. Code §35-42-4-9(a) covers a

“sexual act” and therefore would be classified as “abusive”

under 2243(a) when the age difference is at least four

years. But the crime defined by §35-42-4-9(b) is ambiguous.

It covers some abusive “sexual acts”—for example, a 20-

year-old man induces a 14-year-old girl to perform

fellatio—and other sexual conduct that is not abusive—for

example, a girl in her senior year of high school permits

her boyfriend, in his sophomore year, to touch her

breasts. When a state law covers conduct some of which

is within, and the rest of which is outside, the scope of

a recidivist statute, the federal court may examine the

charging papers (and any guilty-plea colloquy) to

classify the conviction. See Taylor v. United States, 495

U.S. 575 (1990); Shepard v. United States, 544 U.S. 13 (2005).

The district court must find out, using the charging

papers and any other documents that may be considered under Taylor and Shepard, whether Osborne was

convicted of conduct comparable to that covered by

18 U.S.C. §2243. The parties tell us that Osborne, while

age 21, had sexual intercourse with a girl of 14. How

he came to be convicted under §35-42-4-9(b) rather than

§35-42-4-9(a) is a mystery—and, to repeat, the question

is not what he did but what he was convicted of. Unless

the charging papers demonstrate that Osborne has been

convicted of violating §35-42-4-9(b) in a way that shows

“abusive” sexual behavior, as we have defined it, then

the court must treat the 2002 conviction as non-abusive,

because the elements of §35-42-4-9(b) permit a conviction

for many kinds of conduct that federal law does not

call “abusive.”
8 No. 08-1176

The district court must reconsider Osborne’s sentence in

light of our discussion. Osborne’s argument about the

application of U.S.S.G. §2G2.2(b)(5) (which adds five

offense levels when a defendant has engaged in “a pattern

of activity involving the sexual abuse or exploitation of

a minor”) need not be reached if proceedings on

remand show that his violation of §35-42-4-9(b) entailed

abusive sexual contact, for the 15-year minimum under

§2252(b) exceeds the sentence computed under the Sentencing Guidelines. But if the district court rules in

Osborne’s favor on the characterization of his conviction

under §35-42-4-9(b), the court should reconsider the

§2G2.2(b)(5) question in light of its conclusion, and what

we have said in this opinion.

VACATED AND REMANDED

1-5-09